Social Architecture, Judicial Peer Effects and the 'Evolution' of the Law: Toward a Positive Theory of Judicial Social Structure

Abstract

Building upon the themes of this symposium, as well as a growing extant literature demonstrating the common law displays properties of a complex system, we believe existing theories of judicial decision-making and legal change would benefit from the concepts and techniques typically reserved for the study of complexity. Among possible approaches, network analysis offers one manner of representing the interactions between various entities across a complex system. Specifically, as applied to the path of the common law as well as theories of judicial decision-making, the networks paradigm helps evaluate the manner in which individual level judge choice maps to the judiciary's aggregate doctrinal outputs.

Of course, to the extent individual decision-making is driven by factors entirely intrinsic to a given case and a given jurist, the study of interactions is arguably trivial as the description of aggregate would reflect little more than the summation of individual preferences in a manner consistent with the institution's aggregation rule. It is far more likely, however, that judicial choice is, at least in part, impacted by a combination of jurists who are socially prominent and socially proximate. While in some forms of network structure such "peer effects" are limited, in many states of the social world, they are supremely consequential. The precursor to evaluating potential doctrinal consequences is a classificatory effort designed to determine the micro implications of a given observed macro landscape.

Section I provides a brief overview of complexity theory while simultaneously reviewing existing theories of judicial decision-making and legal change. Section II considers a series of classic network structures. Among the possibilities considered herein are random graphs, clustered graphs, as well models built upon processes of preferential attachment. Drawing from the larger complexity literature, Section II also describes the processes of self-organization likely responsible for generating each of these network structures.

With an understanding of these possible "states of the world" in mind, Section III concludes with a consideration of judicial decision making, arguing "the path of the law" - from emergence to convergence - is conditioned, in part, upon the nature of self-organized social architecture that relevant decisional actors confront. In all, we believe "architecture matters." Thus, our broad sweep of the possibility frontier should help identify the conditions under which network effects are present in the development of the common law.

Keywords: Evolution of Law, Judicial Peer Effects, Law as a Complex System, Network Analysis, Judicial Decision Making, Public Law, Doctrinal Phase Transition, Organizational Studies

JEL Classification: K40, H1, D72